Terry Properties, Inc. v. City of Roanoke, 401 So. 2d 25

Terry Properties, Inc. v. City of Roanoke

401 So. 2d 25 | Ala. | 1981

Roy Terry, Rudolph Terry and Terry Properties, Inc., appeal from a decree upholding the partial vacation of a public street in Roanoke, Alabama.

The street vacated, Industrial Boulevard, runs from Chestnut Street on the west to Highway 431 on the east; the eastern half of the boulevard bisects the Roanoke Industrial Park. By resolution, the Roanoke City Council vacated that portion of Industrial Boulevard which runs through the industrial park. Appellants, owners of property bounded on the south by Industrial Boulevard and on the east by the industrial park, filed suit in circuit court to temporarily restrain and enjoin the vacation of the street "until such time as [the City and its mayor, Tommy Hill,] comply with [Section] 23-4-1, et seq." This requested relief was denied after the trial judge determined that the street had been "properly vacated in accordance with Section 23-4-20, Code of Alabama 1975."

Notice of appeal to this Court was filed by appellants on April 1, 1980. That same day the City instituted in the probate court proceedings in accordance with Code 1975, § 23-4-1, etseq. After conducting a hearing and concluding that the petition to vacate was due to be granted, the Judge of Probate ordered the road closed. A panel of court appointed commissioners assessed at zero the damages occasioned by the street vacation. Appellants then appealed to the circuit court. Upon the completion of the de novo hearing in that court, the trial judge concluded that all of the requirements of Code 1975, § 23-4-1, et seq., had been met and that the City's petition to vacate was due to be granted; the jury assessed damages at zero. No appeal has *26 been taken from the decree rendered in the second circuit court proceeding.

Appellees have moved to dismiss the appeal to this Court as moot. The gist of this motion is that by virtue of those proceedings instituted and conducted in the probate and circuit courts, appellants have been given the relief they sought,i.e., compliance with Code 1975, § 23-4-1, et seq.

Appellees' motion is due to be granted. Appellants have been given an opportunity to voice their objections to the partial vacation of Industrial Boulevard. Both a panel of commissioners and a jury have passed upon the issue of damages which may have been suffered by appellants and others as a consequence of the vacation of the street. The City has complied with the provisions of Code 1975, § 23-4-1, et seq. Any relief this Court might grant appellants has already been afforded in the probate and circuit courts. Under such circumstances the issues before this Court are in fact moot and the appeal is therefore due to be dismissed.

MOTION GRANTED; APPEAL DISMISSED.

TORBERT, C.J., and FAULKNER, EMBRY and ADAMS, JJ., concur.